Citation Nr: 9811728
Decision Date: 04/15/98 Archive Date: 05/06/98
DOCKET NO. 96-51 703 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Wichita,
Kansas
THE ISSUES
1. Entitlement to an increased evaluation for residuals of a
right ankle fracture, currently evaluated as 10 percent
disabling.
2. Entitlement to an increased evaluation for residuals of
right wrist injury, currently evaluated as 10 percent
disabling.
3. Entitlement to service connection for a respiratory
disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
Michael A. Holincheck, Associate Counsel
INTRODUCTION
The veteran served on active duty from July 1988 to April
1996.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from an October 1996 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Wichita, Kansas.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran essentially contends that the RO erred in not
granting the benefits sought on appeal. The veteran
maintains, in substance, that her service-connected right
ankle and right wrist disabilities are more severe than is
reflected by their current disability evaluations. She
further contends that she developed a respiratory disorder in
service and is entitled to service connection for the
disorder. Therefore, a favorable determination is requested.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against the veteran’s claim for an increased
evaluation for residuals of a right ankle fracture and an
increased evaluation for residuals of a right wrist injury.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the appeal has been obtained by the RO.
2. The veteran’s right ankle disability is manifested by
moderate limitation of motion with chronic pain, fatigability
and weakness on use.
3. The veteran’s right wrist disability is manifested by a
slight limitation of motion with symptomatology suggestive of
carpal tunnel syndrome and indicative of a mild impairment.
CONCLUSIONS OF LAW
1. The schedular criteria for an evaluation in excess of 10
percent for residuals of a right ankle fracture have not been
met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§
3.321, 4.1, 4.3, 4.7, 4.14, 4.40-4.45, 4.59, 4.71a,
Diagnostic Codes 5270, 5271 (1997).
2. The schedular criteria for an evaluation in excess of 10
percent for residuals of a right wrist injury have not been
met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§
3.321, 4.1, 4.3, 4.7, 4.14, 4.40-4.45, 4.59, 4.71a, 4.124a,
Diagnostic Codes 5214, 5215, 8515 (1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Background
The veteran served on active duty from July 1988 to April
1996. Service medical records (SMRs) for that period reveal
that the veteran suffered a fractured right ankle in December
1993 and underwent an open reduction and internal fixation of
the ankle. In August 1994, the veteran underwent removal of
a medial screw from her ankle. The veteran was given a
medical discharge as a result of her right ankle condition.
The SMRs also indicate that the veteran was treated on a
number of occasions with right wrist pain, sometimes
associated with trauma and sometimes resulting from possible
carpal tunnel syndrome. Finally, the SMRs reflect that the
veteran was treated several times for complaints of shortness
of breath or hyperventilating. Entries dated in July 1988
reflect a history of pollen allergies. Entries dated in
September 1991 reflect that the veteran was diagnosed with
mild reactive airway disease with minimally limiting exercise
induced bronchospasm. The veteran was provided with inhalers
(Proventil and Azmacort). The veteran never listed a history
of asthma on her formal physical examinations. However, in
completing a dental health questionnaire in November 1992,
the veteran indicated that she had a history of asthma.
Notes made by the medical provider indicated that the asthma
occurred in childhood as opposed to being a current
condition. On an October 1994 dental health questionnaire,
the veteran simply listed asthma as a condition with no other
comments. She was listed as using Proventil for her
condition.
After her discharge from service in April 1996, the veteran
sought service connection for her several disabilities. The
veteran was granted service connection for residuals of her
right ankle fracture and assigned a 10 percent rating in
October 1996 that has remained in effect to the present. The
veteran was also granted service connection for her right
wrist disability in October 1996 but assigned a
noncompensable evaluation. The right wrist disability was
increased to a 10 percent evaluation in June 1997 and has
remained at that level until the present. The veteran is
also service-connected for postsurgical scars on her right
ankle at 10 percent, and for a burn scar on her left knee
rated as noncompensable. However, the latter two
disabilities are not issues on appeal at this time.
The veteran submitted a notice of disagreement in November
1996. In her notice of disagreement the veteran stated that
her right ankle bothered her. She said that cold weather
caused her pain and swelling and that she was not able to
perform the same activities that she used to prior to her
injury. She said that her ankle would give out on her. She
also related that she could hardly move her ankle and that
she could not stand on it for a long period of time. In
regard to her right wrist, the veteran noted her prior
surgery in service and said that she had trouble typing or
lifting. She also said that her wrist always felt sprained
and was weak. Finally, the veteran noted that she was
prescribed inhalers for her respiratory problem while still
in service. She said that she used two to three inhalers a
month. She felt that not all of her service medical records
had been received or reviewed in regard to this condition.
She added that she suffered from a lot of colds and had
frequent sore throats. The veteran felt that her
disabilities could not be fairly evaluated without an
examination.
Associated with the claims file are VA outpatient treatment
records for the period from October 1996 to January 1997.
The records reflect treatment provided to the veteran for a
variety of complaints and conditions. In October 1996, the
veteran was seen for complaints of right ankle pain. An x-
ray taken at the time revealed the presence of two metallic
screws in the distal fibula but did not note the presence of
any degenerative changes. Another treatment entry dated in
late October 1996 noted that the veteran gave a history of
restrictive airway disease while in service. In November
1996, the veteran received a dental examination. As part of
her screening, she completed a health questionnaire where she
indicated that she had a respiratory defect and a persistent
cough. In December 1996, the veteran was treated for an
upper respiratory infection (URI). She was followed for the
URI in January 1997 at which time a chest x-ray was taken.
The chest x-ray showed no evidence of infiltrate or
congestive heart failure.
In January 1997, the veteran provided testimonial evidence at
a hearing at the RO. The veteran testified that she could
not walk very far because of pain in her right ankle. She
could not do the sports that she used to do because she could
not jump or run. She said that she had constant pain that
was worse in cold, rainy weather. She said that she had
swelling in her ankle and had received treatment for the
swelling from the VA. The veteran said that she could
probably walk for one block on cement. She then related that
she would go three to four days with pain and then maybe a
day without pain but would have to take medication just the
same. The veteran described her ankle swelling as involving
her entire ankle. It would sometimes become a little red.
She would then elevate her ankle and take anti-
inflammatories. The swelling would occur from walking up
stairs or turning the wrong way or jumping. She said the
swelling varied. She noted that it had happened twice in one
week and other times it would be two to three weeks between
episodes. The veteran did have a brace to wear if the pain
became too great or if she had a lot of walking to do.
In regard to her right wrist, the veteran said that she had
surgery on it while in service. The doctors were considering
a second operation but decided against it. The veteran said
that her wrist did not swell but that she had pain in it.
She said the pain would be in the middle on the inside of her
wrist and would go into her fingers. She said that she could
not do anything repetitive for a long time. She could type
for a period and then her wrist would hurt, mainly during
cold and rainy weather. The painkillers she took for her
ankle pain helped with her wrist pain. The veteran also said
that her wrist affected her in that she could not lift
anything heavy as it would feel like it was pulling and would
hurt. She felt her grip in her right hand was less than her
left hand. She added that if she used her right arm a lot,
her middle fingers would sometimes go numb. Sometimes her
little finger would also become numb but never her thumb.
She gave an example of when she would mow her grass, the
vibrating of the mower could cause her wrist to hurt. The
veteran then described the affects of her right ankle and
right wrist disabilities on her job. The veteran worked at a
shelter for mentally retarded individuals. She worked as a
training specialist and helped the residents in their daily
life skills. Sometimes she required assistance in lifting
items and walking up and down the stairs caused her to limp.
Finally, in regard to her respiratory condition, the veteran
said that her symptoms were getting worse and worse before
she was treated in 1991. She would wake up in the middle of
the night because she could not breathe and said that she was
having difficulty going up and down stairs. She was referred
to a specialist. She said she was given a pulmonary function
test and diagnosed with restrictive airway disease and given
an inhaler to use. The veteran said that she was allowed to
cut down on her daily physical training and only had to
perform the six month fitness test. She said that even then
she would end up walking during the running portion in order
to catch her breath. She went back to see the doctor on
several occasions but there were no medical entries made.
She would sign a logbook and be issued an inhaler. When she
was discharged she purchased an over-the-counter inhaler but
was advised by a VA doctor not to use it. She had been given
an inhaler by the VA. She said that she used her inhaler on
an as needed basis but usually at least daily as she would go
up and down stairs a lot. She also said that she used her
inhaler more in the summer. The veteran stated that she did
not have asthma in childhood.
The veteran underwent a number of VA examinations in March
and April 1997. The types of examinations included
miscellaneous neurological disorders, scars/skin, non-
tuberculosis diseases and injuries, orthopedics, and general
medical. Rather then detailing the individual findings of
the respective examinations, the pertinent findings relating
to the issues on appeal will be combined. The examinations
reported were all performed by the same VA examiner. The
only examination not reported is a gynecological examination
from June 1997.
The veteran complained of a constant ache in her right ankle
and an occasional sharp pain with the ankle giving out,
especially in cool, damp weather. Physical examination found
no swelling or deformity. The deep tendon reflexes were 2+
in both ankles. There were two surgical scars on the right
ankle, one medial and one lateral. They measured
approximately 9 centimeters in length and 1-2 millimeters in
width. The scars were noted as flat, without keloid
formation with sensitivity in adjacent areas on each of side
of the scars. The range of motion of the right ankle was
flexion of 10 degrees and dorsiflexion of 20 degrees. The
examiner’s diagnoses were: status post open reduction with
internal fixation of the right ankle; and, chronic pain
related to ankle surgery.
The veteran gave a history of injury and treatment of her
right wrist in service. She underwent a neurectomy of the
right distal sensory band of the ulnar nerve. She said that
she has had pain in the wrist and dorsal hand since that
time, especially on cold, damp days and following certain
activities such as typing and lifting. The veteran said that
she had occasional tingling in her right fingers,
particularly her second, third, and fifth fingers. She had
no numbness in her feet. There was no history of
discoloration of the extremities but the veteran said that
she did have occasional swelling of her right wrist. The
examiner noted that nerve conduction studies from April 1992
were unremarkable. The physical examination of the veteran’s
right wrist and hand found a tiny scar over the right dorsal
wrist. Otherwise, the wrist and hand appeared unremarkable.
There was no upper extremity edema, discoloration or apparent
abnormality of temperature or sweating. The upper
extremities showed no muscle atrophy or fasciculations.
Strength in the upper extremities was normal except for
questionable mild loss of right grip and interossei strength.
The muscle stretch reflexes were normal and symmetric
throughout. There was no tenderness to palpation over the
volar wrist, but there was mild tenderness to palpation over
the dorsal wrist. The right finger range of motion was
normal. The right wrist showed flexion and extension to 50
degrees. Radial deviation was noted as 10 degrees with 35
degrees of ulnar deviation. Sensation was intact to
vibration and possibly decreased to pinprick over various
areas of the right hand, possibly in the right median
distribution predominantly. Diagnosis was status post
neurectomy of the right distal sensory band of the ulnar
nerve. The examiner also listed an impression that mild,
chronic carpal tunnel syndrome was suspected. The examiner
added that, if carpal tunnel syndrome was present, it could
be related to the veteran’s right wrist injury. However,
there were no clear objective signs of a right median
neuropathy at the time of the examination. X-rays of the
right wrist were interpreted as showing no gross abnormality.
In regard to her respiratory disorder, the veteran gave a
history of a diagnosis of restrictive airway disease. She
described her current condition as a recurrent shortness of
breath that was usually worse on reclining at night or when
going up steps. The veteran used an inhaler for relief.
Physical examination found the veteran to be in no apparent
respiratory distress. The lungs were clear to auscultation.
There were no wheezes, rales or rhonchi. The examiner noted
that the a prior pulmonary function test had shown minimal
airway obstruction. There was no active disease noted at the
time of the examination. The examiner referred to the normal
chest x-ray report dated in January 1997 that was contained
in the VA treatment records associated with the file. The
examiner’s diagnosis was extrinsic asthma with minimal airway
disease.
II. Analysis
As a preliminary matter, the Board finds that the veteran’s
claim for an evaluation in excess of 10 percent for residuals
of her right ankle fracture and an evaluation in excess of 10
percent for residuals of a right wrist injury, are “well
grounded” within the meaning of 38 U.S.C.A. § 5107(a). A
claim that a service-connected condition has become more
severe is well-grounded where the claimant asserts that a
higher rating is justified due to an increase in severity.
See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle
v. Derwinski, 2 Vet. App. 629, 631-632 (1992). The Board is
also satisfied that all relevant facts have been properly and
sufficiently developed. Accordingly, no further development
is required to comply with the duty to assist the veteran in
establishing his claim. See 38 U.S.C.A. § 5107(a).
Under the laws administered by VA, disability ratings are
determined by applying the criteria set forth in VA’s
Schedule for Rating Disabilities, which is based on the
average impairment of earning capacity. Individual
disabilities are assigned separate diagnostic codes.
38 U.S.C.A. § 1155( West 1991); 38 C.F.R. § 4.1 (1997).
Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, it is the present level of disability that is of
primary concern. Francisco v. Brown, 7 Vet. App. 55, 58
(1994). Also, where there is a question as to which of two
evaluations shall be applied, the higher evaluation will be
assigned if the disability picture more nearly approximates
the criteria required for that rating. Otherwise, the lower
rating will be assigned. 38 C.F.R. § 4.7 (1997).
A. Right Ankle
In this case, the veteran’s right ankle disability has been
evaluated under Diagnostic Code 5271, for limited motion of
the ankle. 38 C.F.R. § 4.71a (1997). Under Diagnostic Code
5271, a 10 percent evaluation is provided for moderate
limitation of motion of the ankle. A 20 percent evaluation
is warranted for marked limitation of motion of the ankle.
The veteran’s right ankle disability can also be evaluated
using Diagnostic Code 5270 relating to ankylosis of the
ankle. Diagnostic Code 5270 provides that for ankylosis of
the ankle in plantar flexion at less than 30 degrees, a 20
percent evaluation is warranted.
Neither the SMRs nor the VA treatment records and examination
reports reflect a diagnosis or finding of ankylosis of the
veteran’s right ankle. Accordingly, an increased evaluation
under Diagnostic Code 5270 is not for consideration.
However, the results of the March 1997 VA examination
reflected some limitation of motion of the veteran’s right
ankle. The veteran’s right ankle was noted to have flexion
of 10 degrees and dorsiflexion of 20 degrees. Normal range
of motion for an ankle is demonstrated by dorsiflexion of 20
degrees and plantar flexion of 45 degrees. See 38 C.F.R. §
4.71, Plate II (1997). The evidence, when considering both
flexion and dorsiflexion, indicates that the veteran suffers
from no more than a moderate limitation of motion of her
right ankle. Therefore, the veteran’s right ankle disability
does not warrant a 20 percent evaluation under Diagnostic
Code 5271.
The Board notes that disability of the musculoskeletal system
is primarily the inability, due to damage or infection in the
parts of the system, to perform the normal working movements
of the body with normal excursion, strength, speed,
coordination and endurance. A part of the musculoskeletal
system which becomes painful on use must be regarded as
seriously disabled. 38 C.F.R. §§ 4.40, 4.45 (1997).
Functional loss due to pain must be supported by adequate
pathology and evidenced by the visible behavior of the
individual undertaking the motion. 38 C.F.R. § 4.40.
In this regard, the Board notes the veteran's subjective
complaint of constant pain in her right ankle and fatigue and
weakness on use. The March 1997 VA examination found a
moderate limitation of motion of the right ankle but there
was no muscle atrophy, swelling, or deformity noted. There
were no neurological deficits of the right ankle noted. The
current 10 percent disability evaluation contemplates some
decrease in functional use of the veteran’s right ankle.
Moreover, the examination report did not reflect any
pathology associated with pain on use of the right ankle.
Accordingly, a higher evaluation under 38 C.F.R. §§ 4.40 or
4.45 is not warranted. See DeLuca v. Brown, 8 Vet. App. 202,
206 (1995).
B. Right Wrist
The RO rated the veteran’s right wrist disability as 10
percent disabling by combining two diagnostic codes,
Diagnostic Code 5215, limitation of motion of the wrist, and
Diagnostic Code 8515 relating to paralysis of the median
nerve (carpal tunnel syndrome). See 38 C.F.R. §§ 4.71a,
4.124a (1997). Under Diagnostic Code 5215, a 10 percent
rating is warranted for limitation of motion of the wrist
where dorsiflexion is less than 15 degrees, or where palmar
flexion is limited in line with the forearm whether it is the
major or minor wrist involved. For the major arm, Diagnostic
Code 8515 assigns a maximum rating of 70 percent for complete
paralysis of the median nerve of the major hand inclined to
the ulnar side, the index and middle fingers more extended
than normally, considerable atrophy of the muscles of the
thenar eminence, the thumb in the plane of the hand (ape
hand); pronation incomplete and defective, absence of flexion
of index finger and feeble flexion of middle finger,
inability to make a fist, index and middle fingers remain
extended; inability to flex distal phalanx of thumb,
defective opposition and abduction of the thumb, at right
angles to palm; flexion of wrist weakened; or pain with
trophic disturbances. Incomplete paralysis is rated at 50
percent, if severe; at 30 percent, if moderate; and at 10
percent, if mild. 38 C.F.R. § 4.124a.
In this case, the veteran’s right wrist range of motion is
not limited to dorsiflexion of 15 degrees or with palmar
flexion limited in line with the forearm to warrant even the
10 percent rating under Diagnostic Code 5215. Moreover,
there certainly is no evidence to warrant an increased
evaluation under Diagnostic Code 5214 which would require
evidence of favorable ankylosis of the right wrist in 20 to
30 degrees of dorsiflexion.
In evaluating disease or residuals of injuries of the
peripheral nerves such as carpal tunnel neuropathy, the term
"incomplete paralysis" indicates a degree of lost or impaired
function substantially less than the type pictured for
complete paralysis given with each nerve, whether due to
varied level of the nerve lesion or to partial regeneration.
When the involvement is wholly sensory, the rating should be
for the mild, or at most, the moderate degree. 38 C.F.R. §
4.124a. In reviewing the evidence of record, the Board finds
that the veteran's disability picture most closely
approximates a 10 percent evaluation pursuant to Diagnostic
Code 8515 for incomplete, mild paralysis. The Board
acknowledges that the veteran's right wrist disability may be
productive of pain on use as well as subjective complaints of
abnormal sensation in some of the fingers. This pain,
however, which was not objectively noted on examination in
March 1997, as well as the demonstrated limitation of motion
and complaints regarding abnormal sensation, have been taken
into account in granting the veteran a 10 percent evaluation.
The veteran is not shown to have such disabling pain or
functional impairment of her right wrist to warrant
consideration of assignment of an increased evaluation under
the diagnostic criteria set forth above and including the
criteria of 38 C.F.R. §§ 4.40. 4.45; see also DeLuca, 8 Vet.
App. at 206.
III. Conclusion
The potential application of various provisions of Title 38
of the Code of Federal Regulations (1997) have been
considered whether or not they were raised by the veteran as
required by the holding of the United States Court of
Veterans Appeals (Court) in Schafrath v. Derwinski, 1 Vet.
App. 589, 593 (1991). The Board would point out, however,
that in Floyd v. Brown, 9 Vet. App. 88 (1996), the Court held
that the Board does not have jurisdiction to award an extra-
schedular evaluation pursuant to the provisions of 38 C.F.R.
§ 3.321(b)(1) (1997) in the first instance. In the instant
case, however, there has been no assertion or showing that
the disabilities under consideration have caused marked
interference with employment, necessitated frequent periods
of hospitalization or otherwise rendered impracticable the
application of the regular schedular standards. In the
absence of such factors, the Board is not required to remand
this matter to the RO for the procedural actions outlined in
38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet.
App. 237 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227
(1995).
ORDER
An evaluation in excess of 10 percent for residuals of a
right ankle fracture is denied.
An evaluation in excess of 10 percent for residuals of a
right wrist injury is denied.
REMAND
The veteran’s SMRs show that she was first treated for a
possible respiratory problem while still in basic training in
July 1988. At the time the veteran was diagnosed with pollen
allergies. In September 1991, the veteran was evaluated for
continuing complaints of shortness of breath and difficulty
breathing while sleeping. A pulmonary function test done at
the time reflected a diagnosis of reactive airway disease.
An impression of mild reactive airway disease with minimally
limiting exercise induced bronchospasm was provided. The
veteran’s condition was treated with inhalers, to include
Proventil and Azmacort. Dental health questionnaires
completed by the veteran in 1992 and 1994 noted a history of
asthma. The SMRs do not reflect any further pertinent
findings regarding a diagnosis of a respiratory disorder.
The veteran was discharged from active service in April 1996.
In October 1996, the veteran reported to a VA facility with
complaints of right ankle pain and respiratory complaints.
At a VA examination in March 1997, the veteran was diagnosed
with extrinsic asthma with minimal airway disease. However,
the March 1997 VA examiner did not address whether the
veteran’s current diagnosis was related in any way to her
complaints in service. The veteran testified at her January
1997 hearing that she has had continual respiratory problems
since she was treated in service in 1991 and that she has
used an inhaler as needed since that time.
In order to resolve the issue of service connection for the
veteran’s claimed respiratory disorder, further development
is necessary. Accordingly, to afford the veteran due process
and in order to fully and fairly adjudicate the veteran’s
claim, the case is REMANDED to the RO for the following
action:
1. The claims file should be referred to
a VA physician or appropriate specialist.
The examiner is requested to review the
claims file, including the service
medical records. Based on this review,
the examiner is requested to offer an
opinion as to whether it is at least as
likely as not that the veteran's
currently diagnosed extrinsic asthma had
its onset in service. If the physician
believes that an examination is warranted
the veteran should be scheduled for an
examination. The complete rationale for
all opinions expressed must be provided.
2. Subsequently, the RO should consider
the issue of entitlement to service
connection for a respiratory disorder.
If the determination remains unfavorable
to the veteran, she, and her
representative, should be furnished a
supplemental statement of the case and be
afforded the applicable time to respond.
Thereafter, subject to current appellate procedures, the case
should be returned to the Board for further appellate
consideration, if appropriate. The purpose of this REMAND is
to obtain additional development and adjudication, and the
Board does not intimate any opinion as to the merits of the
case in regard to the issue involved in this remand, either
favorable or unfavorable, at this time. The veteran is free
to submit any additional evidence she desires to have
considered in connection with her current appeal. No action
is required of the veteran until she is notified.
WARREN W. RICE, JR.
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act, Pub.
L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date
that appears on the face of this decision constitutes the
date of mailing and the copy of this decision that you have
received is your notice of the action taken on your appeal by
the Board of Veterans’ Appeals. Appellate rights do not
attach to those issues addressed in the remand portion of the
Board’s decision, because a remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1997).
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